DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Angela Parfitt
(AB2017/52)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 27 MARCH 2017

Application for an FWC order to stop bullying – jurisdictional objection – whether youthconnections.com.au is a constitutionally-covered-business – whether trading activities substantial or peripheral – trading activities are substantial – jurisdictional objection dismissed – application made within jurisdiction.

[1] Ms Angela Parfitt has applied under s.789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying in relation to her employment by youthconnections.com.au (the employer).

[2] In its response (Form F73) to Ms Parfitt’s application, the employer raised the jurisdictional objection that it was not a constitutionally-covered business. I received written submissions and supporting material from both Ms Parfitt and the employer on this issue. This decision determines the employer’s jurisdictional objection only.

[3] Section 789FD of the Act provides:

‘789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.’

[4] Ms Parfitt does not contend that the employer meets the limbs of the definition of ‘constitutionally-covered business’ in sub-ss.(3)(a)(ii), (iii), (iv) or (3)(b). The sole issue for determination is whether the employer is a constitutional corporation (s.789FD(3)(a)(i)).

[5] A constitutional corporation is one that falls within the ambit of s.51(xx) of the Australian Constitution, which states that the Commonwealth Parliament ‘has power to make laws… with respect to… foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.

[6] It is clear from the material before me that the employer is a corporation formed within the limits of the Commonwealth. Specifically, it is a public company limited by guarantee (ACN 131 297 213), registered with the Australian Securities and Investments Commission. The issue, therefore, is whether it is a foreign, trading or financial corporation. Ms Parfitt submits that the employer is a trading corporation.

[7] In Cowie, 1Hampton Ccomprehensively canvassed the authorities on determining whether a corporation is a trading corporation:

‘[31] The approach of the Courts and Tribunals to the meaning of a trading corporation has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angela Parfitt

Details

AGLC: Angela Parfitt [2017] FWC 1645
Case: [2017] FWC 1645
Decision Date: 27 MARCH 2017

CaseChat Overview and Summary

The applicant, Angela Parfitt, applied to the Federal Court for an order from the Fair Work Commission (FWC) to stop bullying in the workplace. The respondent was youthconnections.com.au, an employment agency. The dispute arose from Parfitt's complaint that she was bullied at work. The Court had to determine if it had the power to hear Parfitt's application. The key issue was whether youthconnections.com.au was a constitutionally-covered-business and if its trading activities were substantial or peripheral. The Court found that youthconnections.com.au was indeed a constitutionally-covered-business and that its trading activities were substantial. Consequently, the jurisdictional objection was dismissed, and the application was found to be within the Court's jurisdiction. The Court's decision affirmed that Parfitt's application could proceed, allowing her to seek relief from the FWC against the alleged workplace bullying.

Orders